Citation Nr: 0017829
Decision Date: 07/07/00 Archive Date: 07/11/00
DOCKET NO. 93-27 368 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to service connection for polyostotic fibrous
dysplasia.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
John Kitlas, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1966 to July
1967.
In a November 1967 rating decision, service connection was
denied for polyostotic fibrous dysplasia on the basis that it
was a constitutional or developmental abnormality and was not
a disability under the law.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an August 1993 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California, which held that new and material
evidence had not been received to reopen a claim of
entitlement to service connection for polyostotic fibrous
dysplasia.
The Board upheld the RO's determination in a March 1996
decision. Following the Board's decision, the veteran filed
an appeal with the United States Court of Appeals for
Veterans Claims (known as the United States Court of Veterans
Appeals prior to March 1, 1999) (hereinafter, "the Court").
In a June 1998 Memorandum Decision, the Court held that the
veteran was entitled to a de novo adjudication of his claim,
and that the Board had erroneously treated the claim as a
request to reopen. Moreover, the Court found that to the
extent the Board had decided the veteran's claim on the
merits, there were deficiencies in the Board's merits
adjudication that required a remand.
In March 1999, the Board concluded that due process
considerations required that the case be remanded so that the
RO could initially consider the new arguments advanced in
support of the veteran's claim, now determined to be
entitlement to service connection for polyostotic fibrous
dysplasia on a de novo basis. It has now been returned to
the Board for further appellate consideration. As a
preliminary matter, the Board finds that the RO has
substantially complied with the directives of the March 1999
remand. Accordingly, a new remand is not required in order
to comply with the holding of Stegall v. West, 11 Vet.
App. 268 (1998).
FINDINGS OF FACT
1. The veteran was not noted to have polyostotic fibrous
dysplasia at the time of his enlistment into active duty.
2. An April 1967 Physical Evaluation Board held that
polyostotic fibrous dysplasia of the bone was congenital in
nature and existed prior to the veteran's entry on active
duty. This professional medical opinion is supported by
documented clinical findings, as well as the history reported
by the veteran at that time.
3. The finding that the veteran's polyostotic fibrous
dysplasia preexisted service is also supported by medical
literature submitted by the veteran, and a September 1999 VA
medical opinion.
4. The September 1999 VA medical opinion determined, based
upon a thorough review of the evidence on file, that there
was "no evidence whatsoever" that the disease process was
aggravated, accelerated, precipitated or underwent increase
due to the veteran's military service.
5. No competent medical evidence is on file to refute the
medical opinions that the veteran's polyostotic fibrous
dysplasia preexisted service and did not increase in severity
therein.
CONCLUSIONS OF LAW
1. The presumption of soundness at the time of entry into
service regarding the polyostotic fibrous dysplasia has been
rebutted. 38 U.S.C.A. §§ 1111, 1137 (West 1991 & Supp.
1999); 38 C.F.R. 3.304(b) (1999).
2. The veteran's polyostotic fibrous dysplasia was not
incurred in or aggravated by his active military service. 38
U.S.C.A. §§ 1110, 1131, 1111, 1153 (West 1991 & Supp. 1999);
38 C.F.R. §§ 3.303, 3.306 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Background. The veteran's service medical records reflect
that no pertinent history, complaints or findings were noted
on "Pre-Ind" examination in March 1964 and April 1966. Chest
X-rays in March 1964 and April 1966 were evaluated as
"Normal." About a week after he began active service in July
1966, he was seen for complaints that his left leg hurt when
he ran. He reported that he had sustained an injury to the
left leg at age 10 or 11. In August 1966, he was treated for
pain in his left leg which he reported was due to a broken
left leg when he was 11 years of age. During a routine
dental examination for complaints of a tooth ache in February
1967 it was noted that the veteran had some facial asymmetry
and pronounced areas of radiolucency in the mandible on X-
ray. Further radiographic testing and biopsy resulted in a
diagnosis of fibrous dysplasia. A skeletal survey revealed
radiolucent areas throughout the pelvis, legs and feet.
The veteran was hospitalized in March 1967 for further
evaluation. The report of this period of hospitalization
reflects that the veteran denied any significant family
history of bone disease or metabolic disorders and the only
complaint elicited was of occasional discomfort in the left
hip, which improved with motion. It was reported that when
he was 10 or 11 years old he sustained a quite severe blow to
the left leg just above the ankle, and suffered a fracture in
this area. Regarding his face, the veteran stated that his
head and face had been slightly asymmetrical for the past few
years. He indicated that he had noticed masses on his head
which had been stable for 3 to 4 years. Physical examination
showed prominent frontal bossing. Results from X-ray studies
and a bone survey were compatible with polyostotic fibrous
dysplasia. Numerous cystic lesions were detected in many
areas. The veteran was diagnosed with polyostotic fibrous
dysplasia. The veteran was also seen in consultation with
other physicians, all of whom concurred in the diagnostic
finding of polyostotic fibrous dysplasia of the skeleton. In
that context, the report of orthopedic consultation reflects
that the veteran had severe generalized fibrous dysplasia
involving the entire skeleton and that he needed protection
from fractures. The physicians who evaluated the veteran
during this period of hospitalization concluded that the
veteran should not be in military service and noted that the
veteran should change occupations, from a mechanic to a more
restrained type of work. It was reported that at the time of
his hospitalization, the veteran was "totally asymptomatic."
In an addendum to the report dated in April 1967, it was
noted that the veteran had been given several explanations of
the congenital nature of his disease. Also in April 1967, a
Physical Evaluation Board held that polyostotic fibrous
dysplasia was congenital in nature, existed prior to entry on
active duty, and was not aggravated by active duty.
In a November 1967 rating decision, the RO denied the
veteran's claim of entitlement to service connection for
polyostotic fibrous dysplasia on the grounds that this was a
constitutional or developmental abnormality and not a
disability under the law. By correspondence dated in that
same month, the RO notified the veteran that polyostotic
fibrous dysplasia was not classed as a disease or injury by
VA laws and regulations. The veteran was also notified of
his appellate rights. An appeal was not perfected within the
time period prescribed by law. Accordingly, the November
1967 decision by the RO became final. 38 U.S.C.A. § 7105; 38
C.F.R. § 3.104(a).
The record reflects that the veteran attempted to reopen his
claim on many occasions during the period between 1968 and
1989. Moreover, the record reflects that the RO determined
in each instance that new and material evidence had not been
presented, and confirmed its previous rating decision
following each of the veteran's requests to reopen his claim.
Evidence received between 1968 and 1989, in conjunction with
his requests to reopen the instant claim may be briefly
summarized.
A statement from the veteran was received in April 1971, in
connection with his March 1971 request to reopen his claim.
In that context, the veteran sought service connection for a
head condition and a left hip condition, symptomatology
reported in connection with his diagnosed polyostotic fibrous
dysplasia. By correspondence, dated in May 1971, the RO
advised the veteran that his original claim for these
conditions was denied, and noted that he had not submitted
new and material evidence necessary to reopen his claim.
In June 1971, the veteran submitted a statement regarding an
increase in the severity of symptomatology associated with
his polyostotic fibrous dysplasia. He noted that he had been
hospitalized in 1968 for a surgical procedure to relieve
"swelling and pain." Further, he indicated that this only
provided temporary relief, but a second surgical procedure
was deferred following continued evaluation.
A VA hospital summary, received in June 1971, reflects that
general physical examination showed bossing of the frontal
bones bilaterally. Multiple views of the skeleton reportedly
showed massive involvement of the skull along with the hip,
both ilia, and the proximal femurs bilaterally. The tibia,
fibula, humerus and forearms all showed changes consistent
with fibrous dysplasia.
A radiology consultation report, dated in June 1981, noted
cortical definition of the right sixth and eighth ribs with
cystic changes involving the left hemiplegias and femoral
neck representing fibrous dysplasia, osteitis fibrosa
cystica, xanthomatosis or multiple myeloma. The report noted
that these findings should be confirmed by clinical
evaluation. A radiographic report, dated in September 1981,
confirmed the clinical findings of fibrous dysplasia, as
noted in the June 1981 X-ray studies.
In January 1982, radiolucent changes involving the iliac
bones bilaterally were noted to be suggestive of fibrous
dysplasia. Clinical impressions included osteolytic changes
of the pelvis suggestive of fibrous dysplasia.
VA outpatient medical records reflect that the veteran
received intermittent treatment for symptoms associated with
his fibrous dysplasia from June 1981 to May 1982. The
veteran was prescribed medication to relieve the reported
pain.
The veteran sought to reopen his claim in September 1992. In
support of this request to reopen his claim, he submitted a
VA hospital summary, dated in June 1984, which showed that
the veteran underwent a bilateral lateral rectus to correct
his bilateral strabismus. The veteran was noted to have a
history of facial bone surgery for fibrous dysplasia. A
postoperative diagnosis of status post muscle surgery in both
eyes was indicated.
VA outpatient clinical records, dated in August 1992,
indicate that the veteran utilized a cane for ambulation.
Physical examination revealed protuberant orbital ridge, and
a prominent forehead. The record also reflects that the
veteran continued to receive medication for pain associated
with his joints. In that context, the record reflects that
the veteran participated in the "pain clinic." The veteran
noted that surgical intervention in the skull area had been
discussed as well as surgery for the hips. He also indicated
that he "required" skull surgery, but wanted to delay hip
surgery until he is older.
Along with his Substantive Appeal, dated in November 1993,
the veteran submitted a computer generated copy of a page
from a medical reference book, Mosby's Medical and Nursing
Dictionary, which defined fibrous dysplasia as an "abnormal
condition characterized by the fibrous displacement of the
osseous tissue within the bones affected. The specific cause
of fibrous dysplasia is unknown, but indications are that the
disease is of development or congenital origin." The text
continued with a discussion of the various types of fibrous
dysplasia and the pathological development of the condition.
In an August 1993 rating decision, the RO determined that new
and material evidence had not been submitted to reopen the
veteran's claim of service connection for polyostotic fibrous
dysplasia. This decision was upheld by the Board in March
1996.
The veteran appealed the Board's March 1996 decision to the
Court. As stated above, in June 1998 the Court vacated and
remanded the Board's decision. In its decision, the Court
held that as VAOPGCPREC 82-90 could permit a grant of service
connection if the veteran's disorder was established to be a
congenital disease, as opposed to a congenital defect, it
created a basis of entitlement to service connection that was
unavailable at the time of the November 1967 decision and
subsequent denials based on the failure to submit new and
material evidence. Accordingly, the Court determined that
the veteran was entitled to a de novo adjudication of his
claim, and that the Board had erroneously treated the claim
as a request to reopen. Moreover, the Court found that to
the extent the Board had decided the veteran's claim on the
merits, there were deficiencies in the Board's merits adjudi-
cation that required a remand. Specifically, it was not
clear to the Court whether the Board determined that the
veteran's disability had increased in severity during
service. Furthermore, the Court found that while the Board
purported to apply the section 1153 presumption of
aggravation, and then to conclude apparently that the
presumption had been rebutted, the Board did not identify a
"specific finding" that an increase in the veteran's
disability was due to the natural progress of the disease.
Moreover, it appeared to the Court that to the extent the
Board did apply the presumption of aggravation, it
incorrectly placed the burden on the veteran to show that an
increase in severity exceeded the natural progression of the
disease.
For these reasons, the Court remanded the claim for the Board
to address whether the veteran sustained an increase in
disability during service, thus triggering the presumption of
aggravation, and, if so, whether the government rebutted the
presumption. The Court emphasized that this remand required
a written statement of the reasons and bases for the findings
and conclusions on all material issues of fact and law
presented on the record.
In March 1999, the Board remanded the case for the RO to
initially consider the issue of entitlement to service
connection for polyostotic fibrous dysplasia. The RO was to
advise the veteran of his right to present additional
evidence regarding the merits of his claim. After completing
any addition development deemed necessary, the RO was to
adjudicate the claim including whether the veteran's
polyostotic fibrous dysplasia underwent an increase in
severity during active service, and, if so, was the increase
due to the natural progression of the disease?
Following the Board's remand, the RO sent a development
letter to the veteran in May 1999 requesting that he furnish
evidence, preferably medical, that his congenital disease of
polyostotic fibrous dysplasia had increased in severity
during service. The RO also stated that while medical
evidence was preferable, secondary evidence, such as
statements from fellow servicemen or family or friends who
knew the veteran both prior to and subsequent to service
might be considered. No response appears to have been
received from the veteran regarding this request.
A VA medical opinion was obtained in September 1999 with
respect to the veteran's claim. The physician who issued
this opinion noted that it was prepared after a thorough
review of the veteran's service medical records and his
claims folder. The physician also noted the REMAND issues of
whether the veteran's polyostotic fibrous dysplasia underwent
an increase in severity during service, and, if so, whether
this increase was due to the natural progression of the
disease. The physician noted that a current literature
search was conducted prior to reviewing the veteran's claims
folder, and summarized his findings regarding polyostotic
fibrous dysplasia. Among other things, it was noted that
there were two types of fibrous dysplasia's of the bone,
including a monostotic variety and a polyostotic variety. It
was noted that the polyostotic variety was more likely to
cause multiple pathological fractures, and was more likely to
be diagnosed in a juvenile. After summarizing the veteran's
medical records, the physician opined that the veteran had
polyostotic fibrous dysplasia with diffuse skeletal and
cranio/facial involvement, with "no evidence whatsoever"
that the disease process was aggravated, accelerated,
precipitated or underwent increase in severity due to
military service.
In a February 2000 Supplemental Statement of the Case, the RO
denied service connection for polyostotic fibrous dysplasia.
Legal Criteria. Service connection may be established for a
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West
1991); 38 C.F.R. § 3.303 (1999).
A veteran who served during a period of war or during
peacetime service after December 31, 1946, is presumed to be
in sound condition except for defects, infirmities, or
disorders noted when examined and accepted for service, or
where clear and unmistakable (obvious or manifest) evidence
demonstrates that a disease existed prior to service. 38
U.S.C.A. §§ 1111, 1137; 38 C.F.R. 3.304(b). A preexisting
injury or disease will be considered to have been aggravated
by active military service, where there is an increase in
disability during such service, unless there is specific
finding that the increase in disability is due to the natural
progress of the disease. 38 C.F.R. § 3.306(a) (1999).
Temporary flare-ups will not be considered to be an increase
in severity. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991).
Clear and unmistakable evidence is required to rebut the
presumption of aggravation where the pre-service disability
underwent an increase in severity during active service.
Aggravation may not be conceded, however, where the
disability underwent no increase in severity during service.
38 C.F.R. § 3.306(b). The determination whether a
preexisting disability was aggravated by service is a
question of fact. Doran v. Brown, 6 Vet. App. 283, 286
(1994).
The threshold question that must be resolved is whether the
veteran has presented evidence of a well-grounded claim. A
well-grounded claim is a plausible claim, that is, a claim
which is meritorious on its own or capable of substantiation.
See 38 U.S.C.A. § 5107(a) (West 1991); Tirpak v. Derwinski,
2 Vet. App. 609, 611 (1992); Murphy v. Derwinski, 1 Vet. App.
78, 81 (1990). The quality and quantity of the evidence
required to meet this statutory burden of necessity will
depend upon the issue presented by the claim. Grottveit v.
Brown, 5 Vet. App 91, 92-93 (1993).
Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence is
necessary to establish a well-grounded claim. Lay assertions
of medical causation or a medical diagnosis cannot constitute
evidence to render a claim well grounded. Grottveit, 5 Vet.
App. at 93.
Analysis. In the instant case, the Board finds that the
veteran's claim of entitlement to service connection for
polyostotic fibrous dysplasia is a plausible claim, one that
is capable of substantiation. Thus, it is a well-grounded
claim. 38 U.S.C.A. § 5107(a). Because the claim is well
grounded, VA has a duty to assist the veteran in developing
facts pertinent to the claim. Here, VA has provided the
veteran with the opportunity to present additional evidence
in support of his claim, obtained medical records pertinent
to the claim, and obtained a competent medical opinion on the
issue of whether the polyostotic fibrous dysplasia was
aggravated by active service. There does not appear to be
any pertinent evidence that is not of record or requested by
the RO. Thus, the Board finds that VA has fulfilled its duty
to assist the veteran in developing the facts pertinent to
this claim. No further assistance to the veteran is required
to comply with the duty to assist.
The veteran's polyostotic fibrous dysplasia was not noted at
the time of his entry into active service. Thus, the
presumption of soundness attaches in the instant case. 38
U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Nevertheless, the
Board finds that there is clear and unmistakable evidence
that the condition existed prior to the veteran's entry into
active service. The service medical records reflect that
medical professionals determined that polyostotic fibrous
dysplasia is a congenital disease. Further, the April 1967
Physical Evaluation Board held that polyostotic fibrous
dysplasia of the bone was congenital in nature and existed
prior to the veteran's entry on active duty. This
professional medical opinion is supported by documented
clinical findings, including the report of orthopedic
consultation which reflects that the veteran had severe
generalized fibrous dysplasia involving the entire skeleton.
The veteran at that time acknowledged that his head and face
had been slightly asymmetrical for the past few years and
that he had noticed masses on his head which had been stable
for 3 to 4 years. Physical examination showed prominent
frontal bossing. Additionally, both the medical reference
material provided by the veteran, as well as the September
1999 VA medical opinion, reflect that the onset of fibrous
dysplasia (including the onset of symptoms) is usually during
childhood, although diagnosis may be delayed until
adolescence or even early adulthood if symptoms are minimal.
No competent medical evidence is on file which refutes these
opinions. Therefore, the Board finds that the opinions of
the medical professionals who thoroughly examined the veteran
during service and held that polyostotic fibrous dysplasia
existed prior to entry on active duty, in conjunction with
the history reported by the veteran at that time, the medical
literature provided by the veteran, as well as the September
1999 VA medical opinion, constitutes clear and unmistakable
evidence demonstrating that this condition existed before his
entrance into military service.
The Board must now address whether the veteran's polyostotic
fibrous dysplasia increased in severity during service. With
respect to this issue, the Board notes that upon discharge
from his in-service March 1967 hospitalization, the veteran
was found to be "totally asymptomatic." This supports the
finding that the veteran's polyostotic fibrous dysplasia did
not undergo a permanent increase in severity during service.
Also, the April 1967 Physical Evaluation Board specifically
found that the veteran's polyostotic fibrous dysplasia was
not aggravated by service. Moreover, the September 1999 VA
medical opinion determined that there was "no evidence
whatsoever" that the disease process was aggravated,
accelerated, precipitated or underwent increase in military
service. The Board notes that this opinion was based upon a
thorough review of the veteran's service medical records, the
claims folder, as well as the current medical literature
regarding the condition. Thus, the physician had a
sufficient foundation upon which to base his conclusion.
Further, no competent medical evidence is on file which
refutes either the April 1967 Physical Evaluation Board's
opinion or the September 1999 VA medical opinion. The Court
has long maintained that neither the Board nor the RO can
reject medical evidence, or reach an opposite conclusion,
based solely on its own unsubstantiated opinion. Colvin v.
Derwinski, 1 Vet. App. 171, 175 (1991). Since there is no
evidence to the contrary, the Board must accept these
findings as correct. As such, the Board finds that the
veteran's polyostotic fibrous dysplasia was not incurred in
or aggravated by his period of active service.
For the reasons stated above, the Board finds that there is
clear and unmistakable evidence that the veteran's
polyostotic fibrous dysplasia preexisted service, and that
the preponderance of the evidence shows that the condition
did not increase in severity during active service. Thus,
the veteran's claim must be denied. As the preponderance of
the evidence is against a finding that the condition was
incurred in or aggravated by the veteran's active service,
the reasonable doubt doctrine is not for application. See
generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to service connection for polyostotic fibrous
dysplasia is denied.
Gary L. Gick
Member, Board of Veterans' Appeals